Privacy: Not So Ironclad
A recent Israeli court case has Google divulging the identity of an anonymous blogger. To find out the implications for US law we asked two US and Israeli attorneys, David Mirchin and Russell Mayer, for their opinions here’s what Russell had to say. David's opinion can be found here.
Within Israel, the right of privacy is not absolute and can be pierced under some circumstances. Recently, the Israeli courts noted that Israel's Slander Law prohibits slander via "means of communication", namely "broadcasting by radio, television and reporting in newspapers", but that it does not address the Internet. The court noted that a PROPOSED law (the "Electronic Commerce Law") WOULD extend the provisions of the Slander Law to the Internet.
The Israeli case law, which compelled disclosure of the identities behind IP addresses, relied on the not-yet-promulgated law and the application of its concepts by reasoning under circumstances where it is relatively clear that criminal slander is at issue together with a matter in the public interest. The court recognized the importance of balancing the right of free expression with the public good and the prohibition against damaging someone while hiding behind the veil of anonymity. The court compared the prior situation with the inequity of granting virtual immunity to those who hide behind IP addresses while causing damage to individuals.
ISP's and similar possessors of "anonymous" identities, such as Google, will often take the position that they will only disclose the identity of a party upon being ordered to do so by a court. Once the Israeli court ordered the disclosure, Google used the ruling as justification for revealing the identity.
What is so drastic about the Israeli "Google" decision is that a court would be willing to compel disclosure of identities in circumstances broader than those which have been typical in the U.S. regarding copyright violations or in Israel under previous rulings. The implications for those who sought the anonymity of IP addresses are that they may be subject to discovery.
It is important to note, in addition to that set forth above, that the Google decision was rendered by Israel's Magistrate's Court - a lower level court while precedent upon which it relied was rendered in a District Court (middle level court). Israel's Supreme Court has not considered the issue.
Russell D. Mayer, Adv. (mayer@livmaylaw.co.il) is senior partner at the international, Israeli law firm - Livnat, Mayer & Co. where he specializes in corporate law, hi-tech and banking. He is a regular contributor of legal columns in Israeli periodicals, has recently authored an article on international banking and is the author of the Israeli section of an international book on privacy law.